I FOUND A NEW PHRASE IN THE CASE OF Kisan Trimbak Kothula v State of Maharashtra, decided on 17.11.1976.(MANU/SC/0133/1976MANU/SC/0133/1976; AIR1977SC435, (1977)1SCC300, [1977]2SCR102) by P.N. Bhagwati, S. Murtaza Fazal Ali and V.R.
Krishna Iyer, JJ
Judgement delivered by V.R. Krishna Iyer, J. Regarding Prevention of Food Adulteration Act, 1954(now repealed by FSSA 2006) he says:
"7. The sentencing scheme of the Act
is this. The offences under Section 16(1) are classified in a rough and ready
way and while all of them are expected to be viewed sternly carrying a standard
prison sentence, a few of them are regarded as less serious in certain
situations so that the Court, for socially adequate, individually ameliorative
reasons, may reduce the punishment to below the statutory minimum. The proviso
(i) to Section 16(1) takes care of this comparatively lesser class which may,
for easy reference, be called 'proviso offences'. This dichotomy of food crimes
throws the burden on the Court of identifying the category to which the offence
of the accused belongs. this Court has earlier held-and to this we will later
revert-that even if the offence charged falls under both the categories i.e.,
proviso offences and others, there being admittedly some overlap in the
definitions, the delinquent earns the severer penalty. In this view, to earn
the eligibility to fall under the proviso to Section 16(1), the appellant must
establish not only that his case falls positively under the offences specified
in the said proviso but negatively that his facts do not attract any of the non
proviso offences in Section 16(1).
Prevention of Food Adulteration Act, 1954
Section 16. Penalties
1[(1) Subject to the provisions of subsection (I -A) it any person, -
(a) Whether by himself or by any other person on his behalf, imports into India or manufactures for sale, or stores, sells or distributes any article of food—
(i) Which is adulterated within the meaning of sub-clause (m) Of Cl. (i-a) of Sec. 2 or misbranded within the meaning of Cl. (ix) Of that section or the sale of’ which is prohibited under any provision of this Act or any rule made thereunder or by an order of the Food (Health) Authority;
(ii) Other than an article of food referred to in sub-clause (i), in contravention of any of the provisions of this Act or of any rule made thereunder ; or
(b) Whether by himself or bv any other person on his behalf, imports into India or manufactures for sale, or stores, sells or distributes any adulterant which is not injurious to health; or
(c) Prevents a Food Inspector from taking a sample as authorised by this Act : or
(d) Prevents a Food Inspector from exercising any other power conferred on him by or under this Act : or
(e) Being a manufacturer of an article of food, has in his possession, or in any of- the premises occupied by him, any adulterant which is not injurious to health; or
(f) Uses any report or certificate of a test or analysis made by the Director of the Central Food Laboratory or by a public analyst or any extent thereof for the purpose of ‘advertising any article of food; or
(g) Whether by himself or by any other person on his behalf, gives to the vendor, a false warranty in writing in respect of any article of food sold by him, he shall, in addition to the penalty to which he may be liable under the provisions of Sec. 6, be punishable with imprisonment for a term which shall not be less than six months but which may extend to three years, and with fine which shall not be less than one thousand rupees’:
Provided that-
(i) If the offence is under sub-clause (i) of Cl. (a) and is with respect to an article of food, being primary food which is adulterated due to human agency or is with respect to an article of food which is misbranded within the meaning of sub-clause (k) of Cl. (ix) of Sec. 2or
(ii) If the offence is under sub-section (ii) of Cl. (a), but not being an offence with respect to the contravention of any rule made under Cl. (a) or Cl. (g) of sub-section (I-A) of See. 23 or under Cl. (b) of sub-section (2) of See 24,
The Court may, for any adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term which shall not be less than three months but which may extend to two years, and with fine which shall not be less than five hundred rupees:
Provided further that if offence is under sub-clause (ii) of Cl. (a) and is with respect to the contravention of any rule made under Cl. (a) or Cl. (g) of sub-section (I -A) of Sec. 23 or under Cl. (b) of sub-section (2) of Sec. 24, the Court may, for any adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term which may extend to three months and with fine which may extend to five hundred rupees.
